Drug Charges Subject to Federal Sentancing Guidelines

The power of federal judges to depart from federal sentencing guidelines in drug cases is not limited to cocaine offenses, the U.S. Court of Appeals for the Third Circuit ruled Wednesday.

Though the Supreme Court has held explicitly that such discretion exists in cases concerning the disparity in sentencing guidelines for crack cocaine and powder cocaine offenses, a judge may impose a sentence outside the guidelines in any type of case.

The panel, in U.S. v. Palillero, 12-1363, reversed a 70-month sentence handed down to a Lindenwold man convicted of selling 84 grams of methamphetamine. Defendant Victor Palillero's lawyer urged U.S. District Judge Joel Pisano to put aside the federal sentencing guidelines for methamphetamine, contending they were flawed and did not deserve deference.

Palillero, 24, was arrested after making two sales of methamphetamine to a confidential informant in transactions set up by the Federal Bureau of Investigation. He had no prior criminal record. On Sept. 6, he pleaded guilty to a single count of distributing methamphetamine, 21 U.S.C. 841(a)(1). The U.S. Attorney's Office calculated his guideline range at 70 to 87 months, but he requested a downward variance to 60 months. Besides his young age, his strong work ethic and his desire to provide for his three young children, he cited a policy argument regarding the methamphetamine sentencing guidelines.

Palillero argued that the quantity of methamphetamine associated with a base offense level of 32 — 50 to 150 grams of methamphetamine — was equivalent to the production, importation or sale of more than 1,000 kilograms of marijuana. He argued that someone in possession of 1,000 kilograms of marijuana was seeking to make large profits, while he only made $500 on the transactions that resulted in his arrest.

Palillero compared the disparities between methamphetamine and marijuana to those that existed between crack cocaine and powder cocaine before amendments in the Fair Sentencing Act of 2010. With that law, the disparity between the amount of crack cocaine and powder cocaine needed to trigger certain federal criminal statutes was changed from a 100:1 to an 18:1 ratio.

Palillero also noted the Supreme Court's recognition in Kimbrough v. U.S., 552 U.S. 85 (2007), of the validity of policy-based arguments on sentencing disparity.

In imposing the 70-month sentence, Pisano agreed that the penalty was "high" but said he lacked authority to address the issue of disparate sentences in methamphetamine cases.

"[U]nless and until Congress and the [U.S. Sentencing] Commission seek to equate it to the crack versus powder cocaine disparity, I don't know that I have much else to do with it," he said.

The Supreme Court, in Kimbrough, said federal judges may impose sentences outside the guidelines in cases involving distribution or possession of crack cocaine. And in Spears v. U.S., 555 U.S. 261 (2009), the court reconfirmed its holding in Kimbrough, explaining that the only requirement for such a variance is for the sentencing court to disagree with the guidelines. In Spears, the court held that "[t]he only fact necessary to justify such a variance is the sentencing court's disagreement with the guidelines."

Palillero appealed, and U.S. Circuit Judges Theodore McKee, Dolores Sloviter and Thomas Vanaskie remanded the case for resentencing.

McKee, writing for the panel, said that "Kimbrough's rationale is not limited to the former crack cocaine/powder cocaine disparity." He cited cases in the Third Circuit and elsewhere that support downward variances from the sentencing guidelines based on policy disagreements with various guideline provisions. Among them was U.S. v. Pape, 601 F.3d 743 (7th Cir. 2010), which held that "[w]e understand Kimbrough and Spears to mean that district judges are at liberty to reject any Guideline on policy grounds — though they must act reasonably when doing so."

Palillero was represented by Assistant Federal Public Defender Lorraine Gauli-Rufo. She did not return a call, nor did Assistant U.S. Attorney Andrew Bruck, who represented the government. Matt Reilly, a spokesman for the U.S. Attorney's Office, said there would be no comment on the ruling because the case is still open.

 

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Employment Law - Employer Access to Workers' Social Media Accounts

Legislation that would prohibit employers from demanding access to workers' social media accounts passed the Assembly Monday.

The measure, A-2878, was approved 74-0 after it was conditionally vetoed by Gov. Chris Christie, who asked for a number of changes.

The bill, though laudable in principle, painted "with too broad a brush" and didn't account for employers' hiring and security needs, Christie said.

Among the governor's main concerns were provisions that would have created a private cause of action for employees and candidates to seek injunctive relief — including reinstatement or rehiring of a grievant — as well as compensatory damages, consequential damages and attorney fees.

Christie used the example of a marketing position that required social networking — employers asking about social media to gauge technical skills would be exposed to costly litigation, he said.

Christie also recommended that additional exceptions to the bar be added. One would allow employers to investigate work-related misconduct or the unauthorized transfer of confidential company information to a private account, as long as they're acting on specific information. Another states that, "Nothing in this act shall prevent an employer from viewing, accessing, or utilizing information about a current or prospective employee that can be obtained in the public domain."

The bill's civil penalties — $1,000 for a first violation and $2,500 for subsequent violations, collectable through the Department of Labor — were left intact.

Also left undisturbed were exceptions stating that the law will not prevent employers from complying with state or federal law or adopting company policy in connection with devices issued by the employer or used for business purposes.

The legislation was introduced a year ago. It passed the Senate in a 38-0 vote in October, and the Assembly in a 75-2 vote in March.

After Christie's veto, the bill was revised to incorporate the changes and on May 6 sent to the Assembly.

Christie spokesman Michael Drewniak did not respond to an email seeking comment on the bill.

A companion bill banning requests for social media access by higher education institutions, A-2879, moved through with unanimous legislative support and was signed by Christie on Dec. 3 with a right to sue included.

The main Assembly sponsor is John Burzichelli, D-Gloucester; in the Senate, Stephen Sweeney, D-Gloucester.

At least seven states have enacted laws restricting employers' access to social media: Arkansas, California, Illinois, Maryland, Michigan, New Mexico and Utah.

 

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Car Crash - Lack of Seat Belt Has No Bearing in Homicide Case

A fatal car crash victim's failure to wear a seat belt is irrelevant in a vehicular homicide case, which requires proof only that the accident would have been avoided had defendant not driven as he did, the state Supreme Court ruled Wednesday.

The justices, in State v. Buckley, A-55-11, reversed an Appellate Division panel that allowed into evidence the passenger's lack of a seat belt as well as the improper placement of a utility pole hit by the vehicle.

On Aug. 12, 2008, Keith Buckley and fellow North Brunswick police lieutenant Christopher Zerby were riding in a Dodge Viper sports car Buckley borrowed from his brother.

Buckley lost control and struck a utility pole while driving 94 miles an hour in a 45 mph zone on Route 130. Buckley, who was wearing a seat belt, suffered minor injuries; Zerby, who was unbelted, died later at a hospital.

Buckley was charged with second-degree vehicular homicide, N.J.S.A. 2C:11-5.

A conviction under that law requires a showing that the defendant's "conduct is the cause of a result when it is an antecedent but for which the result in question would not have occurred," N.J.S.A. 2C:2-3(a)(1).

If that determination is made, the causation inquiry moves to the two-pronged standard in N.J.S.A. 2C:2-3(c).

Under the first prong, the statute predicates a finding of causation on proof that the "actual result" was "within the risk of which the actor is aware."

Or, causation may be proved under the second prong — whether "the actual result" involves the "same kind of injury or harm as the probable result" and whether it is "too remote, accidental in its occurrence, or dependent on another's volitional act to have a just bearing on the actor's liability or on the gravity of his offense."

Buckley sought to introduce fact and expert evidence that Zerby would have lived had he buckled up and that the utility pole was in front of a guardrail, in violation of a state roadway design manual.

The state relied solely on the first prong in moving to exclude that evidence.

Middlesex County Superior Court Judge Frederick DeVesa ruled both matters admissible in proving causation. The Appellate Division agreed.

During oral argument before the justices, Assistant Middlesex County Prosecutor Joie Piderit said Zerby's lack of a seat belt was irrelevant because it is a driver's duty to proceed in a nonreckless manner regardless of whether the passenger is belted.

Piderit also argued that the pole- placement issue was a "red herring" because the car should have stayed on the road.

Buckley's attorney, Alan Zegas, asserted before the Supreme Court that the causation question should be put to a jury and that the state's desire for a bright-line rule on admissibility of evidence such as the seat belt and utility pole questions was "impractical."

The Supreme Court reversed, in a decision written by Justice Anne Patterson,

It held that evidence about the seat belt and pole placement is irrelevant to the "but for" causation inquiry and the test under the first prong of N.J.S.A. 2C:2-3(c) — whether the defendant was aware the manner in which he drove posed the risk of a fatal accident.

To be admissible on the issue of causation, the evidence must be relevant to the jury's inquiry under the first prong of N.J.S.A. 2C:2-3(c), Patterson wrote.

The jury must decide whether the defendant's conduct is "an antecedent but for which the result in question would not have occurred," Patterson wrote.

"If the jury determines that defendant was aware that his conduct gave rise to such a risk, it need not assess the exact degree of that risk, or the variables that could affect its magnitude," she said.

"Fact and expert evidence that Zerby's failure to wear a seat belt exacerbated his chance of dying in the collision is thus irrelevant to the jury's inquiry," she added.

Patterson said to ensure jurors have a complete picture, they may be told Zerby's seat belt was unfastened, but such evidence must be accompanied by an appropriate limiting instruction.

Zegas, who heads a firm in Chatham, says the ruling contradicts case law, although previous rulings have focused on the second prong of N.J.S.A. 2C:2-3(c), while this case focused on the first.

"In my view, the trial judge and Appellate Division properly analyzed the law," Zegas says.

Acting Middlesex County Prosecutor Andrew Carey said in a statement, "Today's decision clarifies New Jersey causation law and is an important guide for many pending and future cases."

 

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Criminal - Drug Evidence Suppression Reversed

The Warren County prosecutor on Wednesday won reversal of a trial judge's suppression of drug evidence on the ground that police arrested the suspect before positively identifying him.

The Appellate Division found the appearance of a vehicle matching a tipster's detailed description at an arranged place and time was enough to establish probable cause for arresting the driver.

According to the opinion in State v. Dority, A-4017-11, and an attorney in the case, Phillipsburg police executed a search warrant in March 2010 on the home of William Joe, who was suspected of street-level drug distribution.

Arrested and brought to headquarters, Joe quickly offered to cooperate by arranging a drug purchase with a dealer who had been selling him cocaine every few days for at least two months.

He described the dealer — later identified as Don Dority — as a black male, stocky and six feet tall, with curly black hair and green eyes, and his vehicle as a red Ford Taurus with tinted windows and Pennsylvania license plates.

Joe dialed Dority and asked, in code, to purchase 30 grams of crack cocaine. Dority allegedly hung up to check his supply, and then called back and offered to deliver 7 grams of powder cocaine to Joe's house.

Detective James McDonald, with a prosecutor's authorization, listened in on the calls, though the conversations were not intercepted or recorded.

McDonald alerted officers who had stayed behind at Joe's home to continue searching. They took positions outside the house, waited and eventually saw a car matching Joe's description pull up to the house for a few moments and leave.

Joe — at the direction of McDonald, who was receiving updates from the officers waiting at Joe's house — called Dority back and asked him to return.

When the car reappeared in front of Joe's home, at least five officers surrounded it. They were unable to see inside because of the window tints but directed Dority to show his hands and exit the vehicle, which he did. They allegedly found cocaine in his possession. Dority was charged with two third-degree drug counts, pleaded not guilty and moved to suppress the evidence.

In a March 2012 opinion, Superior Court Judge Ann Bartlett granted the motion, finding probable cause lacking and the arrest unlawful.

"The problem with the facts of this case is that the police jumped the gun" because they couldn't see Dority's face and arrested him without matching his physical description, Bartlett wrote.

Officers "did not give [Dority] a chance to perfect the probable cause by walking up to the informant's door in performance of the planned transaction," so his actions "never evolved into probable criminal activity," she added.

Appellate Division Judges Marie Lihotz and John Kennedy reversed on Wednesday, finding probable cause to arrest even before Dority left his car.

"While it would have been better to let the driver exit the vehicle so that the police could assure themselves that the driver matched the physical description, … the police were not required to wait for that potentially dangerous maneuver to occur before it could be said that they had probable cause to arrest the driver," the panel said in a per curiam opinion.

The judges noted that probable cause can be based on informants' tips if their veracity, and the reliability of the tip, are independently corroborated.

Joe's veracity was borne out by his detailed description of the Taurus and the car's appearance at the location and time he'd specified, they said. "Joe told the officers what to expect, and events played out precisely as Joe stated they would."

Also, the phone conversations that McDonald listened to "made it very evident" that whoever was driving the Taurus possessed cocaine and sought to deliver it to Joe's home.

Assistant Warren County Prosecutor Tara Kirkendall says "it's easier to control the situation from a safety perspective" when officers arrest someone sitting in a vehicle rather than on foot.

The decision "spoke to the need to take into account officers' safety when we're reviewing investigative decisions," she adds. "This does help us figure out what probable cause is under this set of circumstances."

Dority is represented by Assistant Deputy Public Defender John McGuigan Jr. He did not return a call Wednesday. Office spokesman Dale Jones declines comment. Dority, 48, is out of jail on a $500 bond.

 

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Criminal - Texts Between Lawyers and Clients are Private

A criminal defense lawyer need not give grand jury testimony about text messages exchanged with a client who had bolted from court to avoid arrest.

Superior Court Judge Frederick Theemling Jr. quashed the subpoena proffered by prosecutors in State v. Thomas, Grand Jury No. F10, finding the testimony unnecessary because there was sufficient other evidence to show the defendant had skipped bail.

The Hudson County judge also said the defense lawyer's revelation of the content of the texts in open court was a mere courtesy and didn't make them subject to a grand jury subpoena.

Jacob Hudnut, a Jersey City solo and a pool attorney for the Public Defender's Office, represented Lucius Thomas, who was arrested in August 2011 after police allegedly found cocaine and heroin in an apartment where he had been staying.

Theemling presided at a May 2012 jury trial. Thomas was acquitted on nine of 10 counts and found guilty only of resisting arrest. He was released from jail, having been there 10 months.

Thomas appeared at a sentencing hearing on July 6, 2012, but prosecutors moved to postpone and to have Thomas taken into custody on other drug charges lodged since his release.

Theemling granted the motion, but there weren't enough sheriff's officers to take Thomas into custody right away. During the delay, Thomas excused himself to the rest room. Hudnut later informed the court that Thomas had left the building and had texted him that he would not be returning. Hudnut said he texted back, urging Thomas to return, but to no avail.

Days later, Assistant Prosecutor Priya Ramrup asked Hudnut to forward her the text messages, but he refused.

Thomas eventually was arrested in September and remains in custody on the pending drug charges.

On April 15, Hudnut was served with a grand jury subpoena instructing him to appear on May 7 "to testify to all which you may know concerning the above matter," which Hudnut says he understood to refer to the text messages.

Hudnut informed Hudson County Deputy Public Defender Joseph Russo about the subpoena, who in turn contacted the Association of Criminal Defense Lawyers of New Jersey.

John O'Reilly of Day Pitney, an ACDL-NJ trustee, moved to quash the subpoena, arguing the messages were protected by attorney-client privilege and the information sought was available to the state through less intrusive means.

"The basis for the failure to appear was stated on the record and was relied upon by the court in the issuance of a bench warrant," O'Reilly wrote. "Consequently, a transcript of the proceeding is sufficient to establish that Defendant did not appear and what Mr. Hudnut reported to the court regarding Defendant's nonappearance."

At a May 2 hearing, Ramrup acknowledged that she sought Hudnut's testimony about the texts and argued that he had waived any privilege by revealing the nature of the messages in court.

But O'Reilly said Hudnut's disclosure was compelled by Rules of Professional Conduct 1.6(b)(2) and (d)(2), which require a lawyer to disclose information to prevent a client from perpetrating a fraud on the court and to defend himself or herself from a complaint connected to a client's conduct.

Theemling, ruling from the bench, granted O'Reilly's motion without reaching the privilege issue. He found Hudnut revealed the text messages as a courtesy so that the court did not waste time awaiting Thomas' return.

O'Reilly, the First Assistant Morris County Prosecutor from 1982 to 1992 and Warren County Prosecutor for six years after that, says the ruling strikes a blow for public defenders' integrity and independence. He says many clients already distrust public defenders because they're paid by the government, and a contrary ruling by Theemling "would just magnify that by a hundredfold."

Hudnut says of the ruling: "No matter what happened last week, I would've done the right thing. And I don't see participating in my client's prosecution as the right thing."

 

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Lesson learned: Don't be late to court

Apartment House Not Subject to Social Host Liability

A state appeals court on Monday vacated a $7.4 million judgment for a pedestrian hit by a driver who had been drinking at a pool party at an apartment complex.

The judges, in Lau v. Seabring Associates, A-3864-10, found the trial court had given erroneous charges to the jury on social host liability and respondeat superior.

Henry Lau, now 69, was walking his dog in the early morning on Dec. 27, 2006, when hit by drunken driver David Figueroa, who had been drinking during an after-hours pool party at the Excelsior, a Hackensack apartment complex owned by Seabring.

Figueroa's blood-alcohol concentration was .192 percent, far in excess of the legal limit of .08. He pleaded guilty to third-degree assault by auto and fourth-degree leaving the scene of an accident, and was sentenced to five years' probation and 180 hours of community service.

Lau, a cardiologist at Hackensack University Medical Center, broke both legs, his pelvis, back and several ribs. He was unable to return to work.

A Bergen County jury awarded Lau $5 million and his wife $350,000 per quod. It also awarded Lau $1.73 million, under a stipulation by the parties, for lost future wages, and the verdict was molded to include $365,000 for past and future medical expenses.

The jury apportioned 55 percent of liability to Seabring, 25 percent to Figueroa and 20 percent to Gabriel Ortiz, an Excelsior front-desk concierge who let the party-goers enter the building, left the door to the pool unlocked and permitted consumption of alcohol despite a no-drinking policy at the pool.

Figueroa settled for $15,000 before trial and Ortiz defaulted.

A judgment for the entire $7.4 million in damages, minus the $15,000 settlement paid by Figueroa, plus $1.2 million in pre-judgment interest, was entered against Seabring under the joint and several liability statute.

Seabring's 55 percent share, and its respondeat superior liability for Ortiz's 20 percent share, placed it over the 60 percent threshold for full liability under the statute, according to Lau's attorney.

On appeal, Seabring argued that Superior Court Judge Alexander Carver III wrongly submitted the questions of respondeat superior liability and social host liability to the jury and gave erroneous instructions on the issues.

In their per curiam decision, Appellate Division Judges Susan Reisner, Harris and Margaret Hayden said the factual picture was "insufficient to present the jury with a viable dispute regarding vicarious liability based on respondeat superior."

The decision by Ortiz, a member of the security staff, to admit trespassers was clearly outside the scope of his employment as it "directly undermined the security of the building that Ortiz was hired to provide," the panel said.

The judges further held the "record does not warrant the inclusion of a stand-alone charge on a social host theory of liability because Seabring was not a social host. It was an employer."

Figueroa was only 20 at the time of the party and liability for providing alcohol for people under 21 is governed by traditional negligence principles under common law, not social host liability, the panel said.

In addition, the pool party was not sponsored or condoned by Seabring, and there was no evidence it provided the alcohol, the panel said.

Seabring asked the appeals court to find that an accumulation of errors required a new trial on liability and allocation of fault.

Again the panel sided with the company, finding that Carver "improperly fused" respondeat superior and social host liability, and jurors were never asked to consider the differences between vicarious and primary liability.

The panel said it had "no confidence" that the jury properly evaluated the actors' liability and assigned appropriate percentages of fault.

"When viewed under the totality of the circumstances, the material surplusage of issues presented, the trial court's overlapping instructions, and the unnecessarily narrow-focused verdict summary form combined to create a misleading deliberative environment, fully capable of engendering an unjust result," it said.

The appeals court ordered a new trial on liability and apportionment of blame. But that is now moot as the plaintiff will receive $5 million under a high-low agreement with defendant Seabring Associates while the appeal was pending, according to his lawyer, Rosemarie Arnold, who heads a firm in Fort Lee.

Arnold says she disagrees with the ruling but her client would have prevailed if the case had been retried solely on a negligent supervision theory of liability against Seabring. "The evidence was in abundance that they negligently supervised" Ortiz, she says.

As for the high-low settlement, "no one likes to lose, but when the booby prize is north of $5 million, it's not that bad," she says.

 

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Traffic Violations - Look Out! Speeds Lowered in Scotch Plains, NJ

SCOTCH PLAINS — Concerns for safety along some narrow roadways have led Scotch Plains officials to lower a number of speed limits in town, officials said.

“The town has grown, and the makeup has changed considerably,” Mayor Kevin Glover said today. “Obviously at one point we were a very rural town, and on these streets there has been a lot of development.”

Stretches of Martine Avenue, Terrill Road and Raritan Road all have reduced speeds effective today, police said in a press release. Updated signs noting the new limits have been posted.

In preparation for today’s changes, police officers staked out certain areas and tracked drivers’ speeds, Glover said. They found people were driving upward of 55 mph on narrow, tree-lined streets where the posted limit was 45 mph, a remnant of the town’s more rural past.

Police brought their analysis to the township council, who approved the recommended changes unanimously, Glover said. Union County then signed off on the proposal.

“There was a time when these roads were almost like back roads,” Glover said, though consistent growth in population and bicycle traffic over the last few decades have made them much riskier for high-speed driving.

“We’re trying to be proactive and keep the community safer,” Glover said. “Reality is, there’s a lot more traffic on there, a lot more development that has taken place.”

Glover said he has not heard any resistance to the modified limits, though he understands that might change as drivers begin to navigate the slower roads.

Still, he doesn’t think the 5- to 10-mph differences should raise too much ire.

 

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Verdict in Favor of Merck Over Lawsuit

A federal jury in Trenton has found in favor of Merck & Co. Inc. in the first suit to go to trial over claims that its osteoporosis drug Fosamax causes fractured femurs.

After an hour and 20 minutes of deliberation on Monday, jurors voted 8 to 0 that the plaintiff failed to prove by a preponderance of the evidence that her fracture was of the so-called atypical type said to be caused by the drug.

The verdict in Glynn v. Merck, Sharp & Dohme Corp., 11-cv-5304, is important because 3,330 of 4,560 pending Fosamax suits are over fractured femurs or other bone-related injuries. The rest pertain to jaw-related problems.

The drug is designed to slow bone loss and make bones more dense. But some plaintiffs say it interferes with the normal bone-healing process in such a way that microfractures are not repaired.

Atypical femur fractures are defined as near the hip or in the middle section of the long bone of the femur, with a straight, rather than uneven, fracture, and usually occurring while the subject is simply standing or walking.

Bernadette Glynn, now 58, of Cohoes, N.Y., claimed she began using the drug in 2001 and continued until 2009, when she bent over while gardening and felt a pinch in her right leg.

She later learned she fractured her femur and underwent surgery to repair it with a rod and screws.

She claimed the company failed to adequately disclose risks associated with long-term use of Fosamax.

Her suit included counts for failure to warn and defective design, both under the New Jersey Product Liability Act; negligence; negligent misrepresentation; breach of express warranty and breach of implied warrant of fitness and merchantability; and violation of the New Jersey Consumer Fraud Act. She also included a claim for loss of consortium by her husband, Richard.

The company contended that Fosamax didn't cause Glynn's injury, that it made the proper disclosures to the public and physicians, and that it acted responsibly in researching, developing and monitoring Fosamax.

Jurors answered "no" to the first question on the verdict sheet, which was, "did Bernadette Glynn prove by the preponderance of the evidence that she experienced an atypical femur fracture in April 2009?"

Their answer of "no" meant they did not proceed to questions on adequacy of Merck's warning and the proper amount of compensation.

The verdict was reached after 15 days of trial before U.S. District Judge Joel Pisano.

Merck hailed the victory, which brings its record to six wins and two losses among Fosamax cases — over jaw-bone problems — tried to completion.

Bruce Kuhlik, executive vice president and general counsel of Merck, said in a statement: "The company provided appropriate and timely information about Fosamax to consumers and the medical, scientific and regulatory communities."

He added, "We remain confident in the efficacy and safety profile of Fosamax."

Merck was represented by Chilton Varner and Andrew Bayman of King & Spalding in Atlanta and Karen Confoy of Fox Rothschild in Princeton.

The lead plaintiff lawyer in the case, Paul Pennock of Weitz & Luxenberg in New York, says, "as far as the atypical fracture finding, there are appellate issues concerning the verdict sheet presentation of that question, among other issues." He declines to elaborate.

To date, two Fosamax cases have been tried before Superior Court Judge Carol Higbee in Atlantic County Superior Court. Defense verdicts were returned in both cases, in which plaintiffs linked necrosis of the jawbone to use of Fosamax.

Higbee also began a trial in another Fosamax case involving a broken femur in March. But Higbee declared a mistrial in that case March 18 after the plaintiff suffered a heart attack.

Five other Fosamax trials have been conducted to date, all in the Southern District of New York. Plaintiffs have prevailed in two.

In one, Scheinberg v. Merck, the jury awarded $285,000. In the other, Boles v. Merck, the jury awarded $8 million, but the judge reduced the award to $1.5 million. When the plaintiff sought a new damages trial, Merck settled for an undisclosed amount.

Merck introduced Fosamax in 1995, and it remains on the market. In 2005, at the recommendation of the Food and Drug Administration, the company amended its labeling to disclose risks that it can cause necrosis of the jawbone.

The labeling was changed again in 2011 after the FDA issued a safety announcement and studies linking the drug with femur fractures, exposed and rotting jawbones, fractures, gum lesions, severe jaw pain, loose teeth and secondary infections.

Suits filed in New Jersey, other than those seeking medical monitoring, were consolidated before Higbee in October 2008.

 

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Whistleblower suit

Court Weighs Whistleblower Suit For Violations of Company Policy

The state Supreme Court is considering how far New Jersey's whistleblower law can reach when an employee alleges retaliation for complaining about conduct that might have violated company policy but was not necessarily illegal.

The court on Wednesday heard arguments in Battaglia v. UPS Inc., A-86/87-11, an appeal from a judgment awarding damages to a United Parcel Service worker demoted and assigned to the night shift after reporting other employees' improper behavior to his supervisor.

Michael Battaglia complained about managers' actions that he thought violated UPS policy, such as making derogatory comments about women, misusing corporate credit cards and filing false expense reports in order to cover the costs of buying alcoholic drinks at lunches that stretched for hours.

Following a month-long trial before Superior Court Judge Phillip Paley, the jury found that UPS violated both the Conscientious Employee Protection Act and the Law Against Discrimination. It awarded Battaglia $500,000 for economic losses and $500,000 for emotional distress, though Paley reduced the emotional damages award to $205,000. The jury found no cause for Battaglia's claim for punitive damages.

The Appellate Division affirmed the CEPA violation, but vacated the emotional damages award and ordered a new trial. It also found that there was no reason to award punitive damages. Both sides filed appeals to the Supreme Court.

UPS's attorney, Michael Bissinger, told the court there was no basis for there to be a valid CEPA claim.

Battaglia, he said, was not engaging in protected activity when he complained about the alleged misuse of corporate credit cards because there was no UPS policy saying nondriver employees could not drink alcohol at lunch and putting that in their expenses.

Bissinger, of the Piscataway office of Day Pitney, said Battaglia would have to have believed there was evidence of some clear illegal activity, such as fraud, for him to be protected by CEPA.

"There is no CEPA claim when the activity does not violate internal policies," Bissinger said.

Chief Justice Stuart Rabner said Battaglia suggested there was the misuse of company credit cards.

Bissinger said there was no evidence that the employees were violating company policies or any criminal statutes.

Justice Anne Patterson asked whether Battaglia might not have understood company policy and believed he was reporting illegal or fraudulent activity. "Is that actionable?" she asked.

"I don't think so," Bissinger said. "We're talking about UPS internal policy, not laws. Maybe if they were drinking and then driving."

Appellate Division Judge Anthony Parrillo, temporarily assigned, asked whether Battaglia did enough of an investigation before voicing his concerns.

"He could have done more, and should have done more," Bissinger said.

Battaglia's lawyer, Maureen Binetti, told the court that Battaglia should receive CEPA protection.

"He was the quintessential UPSer," she said. "He is no longer the same person. His life was destroyed.

"Michael Battaglia tried to do the right thing," said Binetti, of Woodbridge's Wilentz, Goldman & Spitzer.

If a person has a reasonable, not frivolous, belief that there is improper conduct, CEPA should apply, she said. "That's what happened here."

"He's not required to be a lawyer," Binetti said. "He was trying to protect the company from fraud by its managers."

Patterson asked whether there was anything beyond the purported credit card misuse or manipulation of the meals expense system.

Binetti pointed to the evidence that Battaglia also complained about the derogatory remarks made about female employees.

Justice Helen Hoens asked whether Battaglia had concerns that the employees' behavior was causing poor work performance.

"That's correct," Binetti said. "He believed that because of all the abuses going on."

Justices Barry Albin and Jaynee LaVecchia recused, as did Appellate Division Judges Ariel Rodriguez and Mary Catherine Cuff, also temporarily assigned.

 

New Jersey Law Journal April 18, 2013